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David Rivkin and Lee Casey at Wall Street Journal (via Google): Later this month the Supreme Court will hear a case that should resolve how much latitude presidents have to make recess appointments to federal offices that otherwise require Senate confirmation. The boundary of this power has never been decided by the high court. Yet the entire scheme of the U.S. Constitution—which is based on a separation of powers, enforced through checks and balances to safeguard individual liberty—is at stake. Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012.
Mark Walsh at ABA Journal: In NLRB v. Noel Canning, the justices will consider whether the president’s recess-appointment power applies to intersession or intrasession position vacancies, or both.
NPR: The Supreme Court agreed Monday to Sen. Mitch McConnell’s request to let Senate Republicans participate in the high-profile case Noel Canning v. National Labor Relations Board.
Blog of the Legal Times: As a result, the argument in NLRB v. Noel Canning will run 90 minutes instead of the usual 60. Miguel Estrada of Gibson, Dunn & Crutcher had asked the court on November 25 for additional time on behalf of his client Sen. Mitch McConnell, (R-Kentucky) and 44 other senators who object to Obama’s appointments.
Volokh Conspiracy: Last week, I joined with Michael Ramsey (San Diego) Michael Rappaport (San Diego), Chris Green (Mississippi), Gary Lawson (Boston University), John McGinnis (Northwestern) and Todd Zywicki (George Mason) on an amicus Brief of Originalist Scholars in NLRB v. Noel Canning.
How Appealing links to the report and several filings in connection.
David G. Savage at LA Times: The Supreme Court term that opens Monday gives the court’s conservative bloc a clear opportunity to shift the law to the right on touchstone social issues such as abortion, contraception and religion, as well as the political controversy over campaign funding.
Buzz Feed: At 10 a.m. Monday, in the midst of a government shutdown, Chief Justice John Roberts will begin his eighth term at the Supreme Court — beginning a session in which the justices are slated to hear cases affecting the future of legislative prayers, presidential power in making appointments, and whether a meth addict can have a court-ordered mental evaluation used against him in fighting murder charges.
John Elwood at SCOTUS Blog: Newspapers are reporting that, as part of a tentative deal to preserve existing Senate filibuster rules, Senate Republicans have agreed to allow a vote on nominees to be the first director of the Consumer Financial Protection Bureau and to the National Labor Relations Board.
Christian Science Monitor: The Supreme Court will weigh in on a major flash point between President Obama and Senate Republicans, who challenge his use of recess appointments while their chamber is holding ‘pro forma’ sessions.
AP: The justices said they will review a federal appeals court ruling that found Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board.
The Hill: All 45 GOP senators signed a brief calling Obama’s appointments an unconstitutional abuse of power.
Lyle Denniston reports at SCOTUS Blog: The Obama administration asked the Supreme Court on Thursday to restore the President’s power to fill vacancies in government posts when the Senate is out of town. The petition argued that the D.C. Circuit Court got it wrong in January in sharply curtailing that authority. (The Circuit Court’s ruling — discussed in this earlier post – is attached as an appendix to the petition but also can be read here.)
Reuters: Lawmakers held a spirited discussion on the immediate future of the National Labor Relations Board on Wednesday, after a recent appeals court ruling that cast doubt on the board’s authority to make decisions.
Washington Post: President Obama nominated three candidates for full terms to the National Labor Relations Board on Tuesday, urging the Senate to confirm the nominees quickly.
Bloomberg: President Barack Obama’s appointment of labor board members last year while most senators were out of town met skepticism from appeals court judges weighing whether he overstepped his constitutional powers.
Volokh Conspiracy: No real surprise here: the NLRB is going to skip seeking en banc review of Canning v. NLRB and petition for cert. There are scads of other cases now working their way through the courts of appeals and this is a way of resolving the issue once and for all.
The Hill: Sen. Roy Blunt (R-Mo.) on Wednesday said he and freshman Sen. Ted Cruz (R-Texas) are putting forward legislation that would cut the salaries of the two National Labor Relations Board (NLRB) members who were recess-appointed last year.
SCOTUS: The spreading constitutional controversy over President Obama’s use of the power to appoint government officials when the Senate is not in full session has now reached all but three of the federal courts of appeals, with thirty separate challenges. So far, only one of the cases has been decided — the overwhelming defeat of the President’s position by the D.C. Circuit Court last Friday.
Bloomberg: President Barack Obama’s recess appointments to the U.S. National Labor Relations Board last year were “constitutionally invalid” because the Senate wasn’t in recess at the time, a federal appeals court in Washington ruled. | Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013)